How do I know if I have a claim?
In most cases, it will not be known initially whether a diagnosis of Cerebral Palsy was brought about by failures in the standard of care provided during childbirth. Investigations will need to be undertaken and this will include the gathering of hospital records and the instruction of expert medical opinion. Medical negligence cases are often difficult to establish, but appointing a solicitor with significant experience of handling similar matters will mean that you have the appropriate support and advice about how to take the first steps in investigating your potential claim.
When you first meet with a solicitor to discuss whether you potentially have a case, it is important to ask questions about the experience the solicitor has in dealing with cases concerning Cerebral Palsy. Many families want to know that their appointed representative has a track record of dealing with claims related to the investigation of how this condition was brought about. Cerebral Palsy claims are complex and often take many years to investigate. The review of medical records and the instruction of expert witnesses form only the first part of the process. It is likely that multiple experts will be required to consider various elements of the case and your solicitor will work with you in identifying the next steps in the investigation required in order to achieve a successful outcome to the case. It will be important to get a detailed and accurate account of events from you and also from the health care professionals involved in the birth. Your solicitor should consider the details of the pregnancy, labour and post natal period in order to understand fully any complications in the process. Formal statements will be prepared which will assist the expert witnesses appointed to the case and their wider consideration of the issues.
Why expert evidence is required
In order to establish that there has been a breach of duty on the part of those providing health care, it is necessary to prove that the child has suffered an injury, and that that injury was caused as a direct result of a failure to adhere to common practice. It must then also be proved that the condition is linked to the breach of duty and that, had the treatment been delivered in accordance with the ordinary standard of care, a diagnosis of Cerebral Palsy would not have been made.
In order to consider the above questions, expert witnesses need to be involved to look at the medical records and provide their opinion on what happened. Typically, the first type of expert to be instructed would be a obstetrician or a gynaecologist. That is because they will look at the actions of those involved in managing the process of childbirth, and confirm whether their actions were in accordance with the ordinary standard of care that should be expected in those circumstances. Investigations after that point will be determined by the answers of the first expert report, and the questions which still require to be addressed.
How do I make a claim?
The first step in the process is speaking to a solicitor about investigating the circumstances leading to the diagnosis of Cerebral Palsy. There are various funding options available to cover the cost of those initial investigations. The best place to start is beginning a conversation with your solicitor about the options that are available and your preferred method of meeting the initial costs. For some people, legal aid funding is available to assist with this expense and an application can be made on your behalf, if appropriate. Other funding models are available to those who do not qualify for legal aid, but would otherwise have difficulty in meeting the significant costs associated with investigating and pursuing a claim of this nature.
How long will my case take to conclude?
The length of time your case continues for will depend on a number of different factors. You should be prepared for the case to last a year or more and, in some cases, it can take significantly longer than this.
It is important that your solicitor has the information available to consider what additional needs the child has as a result of the diagnosis. Sometimes, that means waiting a few years to allow the child to be assessed and for a Care Needs Report to be prepared, with the benefit of observing how the child has progressed and developed over time. In most cases, the investigations will take over a year, but it will be dependent on the particular circumstances of your claim and it is important to emphasis that no two cases are the same.
How much will my case be worth?
Typically, the additional costs of caring for a child with Cerebral Palsy are significant. If the case is ultimately successful, financial compensation can be secured to meet the costs of therapy, surgery, assistive technology, speech and language support and other resources intended to benefit and improve the life of those with a diagnosis of Cerebral Palsy. Compensation can also be sought to account for the loss of earnings that the child would otherwise have been likely to obtain in their lifetime, in addition to a financial sum which recognises the pain and suffering associated with an avoidable diagnosis.
The process of investigating a medical negligence claim will include building the case against the health care provider, but will also require thorough investigation of what losses have been sustained by the family and by the child in relation to the diagnosis of Cerebral Palsy.
When should I raise a claim?
One of the most important aspects of pursuing a Cerebral Palsy claim is the timing. Ordinarily, there is a period of 3 years beginning from the date of the negligence, during which time a claim must be raised in Court. There are exceptions to that rule, which are particularly relevant to Cerebral Palsy cases. In particular, a child or someone acting on their behalf may seek to raise a claim at a much later stage in childhood, either because they were not aware of any potential negligence at child birth, or because it was important to observe how the child developed before considering a claim. The 3 year rule is therefore extended in these cases because a child is afforded until 3 years after their 16th birthday to consider whether to raise a claim for events relating to the childbirth, and that includes anyone who is acting on their behalf.
However, it is always important to speak to a solicitor as soon as you begin to consider investigating a claim relating to a diagnosis of Cerebral Palsy. This is because the investigations required are extensive and allowing as much time for that as possible will be of the greatest benefit to your case.
Why Morton Fraser?
Morton Fraser has a successful track record of pursuing claims relating to diagnosis of Cerebral Palsy. We are experts in investigating and litigating high value claims against the NHS and other health care providers for breaches of duty which led to preventable conditions.
We have a range of funding models available for our clients, which allow flexibility in our approach to undertaking investigations on your behalf. Our experience allows us to provide clear advice about prospects of success in a claim and the investigations required to prove a case where the issues are complex in nature.
If you suspect that a condition your child has been diagnosed with may have been brought about by a preventable birth injury, we would be pleased to hear from you in order to discuss how we may be able to take your claim further.